Quigg et al v. Bell et al

Filing 24

ORDER; Quigg's Objections to Magistrate Judge Johnston's Orders [Doc. 23] are OVERRULED. Quigg must file a second amended complaint or provide notice of his intent to proceed on his denial of medical care claim against Nurse Vicki, Nurse An gie,and PA Caruso on or before July 20, 2018. Quigg must immediately notify the Court of any change in his mailing address by filing a "Notice of Change of Address." Failure to do so may result in dismissal of the case without notice. Signed by Judge Brian Morris on 6/22/2018. (order to mailed to Quigg) (TLO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

GARYL. QUIGG,
CV-17-35-GF-BMM-JTJ
Plaintiff,

v.
ORDER

DARRELL BELL, et al.,
Defendants.

Plaintiffs Gary Quigg, Allen Witherall, and Timothy Schoen filed a
Complaint on April 11, 2017. (Doc. 4.) The Complaint alleged, generally, denial of
medical care, interference with legal access, and conditions of confinement claims
against United States Marshals, and employees and medical providers at
Crossroads Correctional Center in Shelby, Montana, the Yellowstone County
Detention Facility in Billings, Montana, and the Big Horn County Jail in Basin,
Wyoming. (Doc. 4.)
United States Magistrate Judge John Johnston issued an Order in this matter
on April 13, 2017. (Doc. 6.) Judge Johnston severed the Plaintiffs' claims, and
ordered each Plaintiff to file an amended Complaint on or before May 12, 201 7.
(Doc 8.)

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Quigg filed his First Amended Complaint on May 10, 2017. (Doc. 13.)
Quigg supplemented his Complaint on May 19, 2017. (Doc. 14.) Quigg moved to
supplement additionally his Amended Complaint on June 19, 2017. (Doc. 15.)
Judge Johnston issued an Order on November 2, 2017. (Doc. 20.) Judge
Johnston granted Quigg's Motion to Supplement. (Doc. 20 at 1.) Judge Johnston
screened Quigg's Amended Complaint as required by 28 U.S.C. §§ 1915, 1915A.
Judge Johnston found that Quigg had stated a claim for denial of medical care
against medical providers at Yellowstone County Detention Center. (Doc. 20 at 1.)
Judge Johnston further found that all other allegations failed to state a claim
upon which relief may be granted. (Doc. 20 at 1.) Judge Johnston indicated that he
would recommend dismissal, in a subsequent order, of such claims that could not
be cured by the allegation of additional facts. (Doc. 20 at 26.)
Judge Johnston granted Quigg the opportunity to file a second amended
complaint by November 30, 2017, however, regarding such claims that Judge
Johnston found to possess defects that may be cured by additional factual
allegations. (Doc. 20 at 27.) Judge Johnston extended this deadline to January 5,
2018, upon Quigg's motion for such relief. (Doc. 22.)
Quigg filed Objections to Judge Johnston's April 13, 2017, and November 2,
2017, Orders on January 8, 2018. (Doc. 23at10.)

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I.

LEGAL STANDARD

The Court reviews for clear error when a party objects to the order of a
magistrate judge. Grimes v. City and County ofSan Francisco, 951 F .2d 236, 241
(9th Cir. 1991 ). This Court must defer to the magistrate's order unless it is clearly
erroneous or contrary to law. Id.
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II.

DISCUSSION

Quigg raises seven objections to Judge Johnston's Order. Quigg first objects
to Judge Johnston's April 13, 2017, order to sever. (Doc. 23 at 1-2.) Quigg further
objects to Judge Johnston's "proposed dismissal" of all Crossroads defendants
(Objection 2) and the United States Marshals Service defendants in Count 1
(Objection 3). (Doc. 23 at 2-6.) Quigg's remaining objections concern Counts for
which Judge Johnston granted Quigg leave to amend. (Doc. 23 at 6-8.)

A.

Severance
Judge Johnston ordered that Plaintiffs Quigg, Witherall, and Schoen must

proceed separately on their own claims. (Doc. 8 at 2.) Judge Johnston noted that
the Ninth Circuit has not addressed the issue of whether multiple prose prisonerplaintiffs may join their claims together. Id. Upon an analysis of the relevant Rules
of Civil Procedure and statutes governing prisoner litigation, Judge Johnston
concluded: 1) that severance minimized the potential conflict between the Prison
Litigation Reform Act's (PLRA) mandate that each prisoner-plaintiff pay the full
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filing fee and the statute's concurrent prohibition on collection of fees in excess of
the fee imposed for commencement of a civil action; 2) that severance avoided the
danger that a pro se prisoner might be penalized under Federal Rule of Civil
Procedure 11 for inaccurate factual statements made by a co-plaintiff; 3) that
severance prevents pro se prisoner-plaintiffs from circumventing the "three strikes
rule" by joining complaints or appeals that are frivolous, malicious, or fail to state
a claim with co-plaintiffs' meritorious complaints or appeals; and 4) that severance
avoids the practical difficulties of joint litigation among pro se prisoner-plaintiffs.
(Doc. 8 at 3-7.)
Quigg argues that the Ninth Circuit in 1982 permitted three prose prisonerplaintiffs to proceed jointly. (Doc. 23 at 2.) Quigg further argues that Judge
Johnston's reasoning contravenes the permissive joinder rule found in Federal Rule
of Civil Procedure 20 despite the PLRA's silence on joint filings. Id.
Quigg cites Pepperling v. Crist, 678 F.2d 787 (9th Cir. 1982), for the
proposition that the Ninth Circuit condones joint actions by pro se prisonerplaintiffs. (Doc. 23 at 2.) Judge Johnston did not analyze the circumstances of
Pepperling, but, as even Quigg acknowledges, Pepperling predates the PRLA.
(Doc. 12 at 2.) Judge Johnston acknowledged additionally that severance
forecloses prose prisoner-plaintiffs of the opportunity to proceed jointly under
Federal Rule of Civil Procedure 20. (Doc. 8 at 7.) Judge Johnston noted, however,
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that payment of a single filing fee constitutes the primary benefit to litigants
seeking to file jointly under Rule 20. Id. The PLRA itself requires that each
prisoner must pay the filing fee. Id.
The Court has reviewed Judge Johnston's Order for clear error. The Court
finds no error, and overrules Quigg's objection to severance.
B.

Proposed Dismissal
Quigg's second and third objection concern the "proposed dismissal" of the

Crossroads Correctional Center defendants, and the United States Marshals Service
Defendants named in Count 1. (Doc. 23 at 2-4.)
Judge Johnston has yet to recommend dismissal of these defendants to the
Court. At this stage, the Court has reviewed Judge Johnston's Order for clear error.
Finding none, Quigg's objections to the "proposed dismissals" are overruled.
Quigg may raise his objections to Judge Johnston's interpretation of relevant
precedent at the time that Judge Johnston makes a recommendation of dismissal.
The Court will then conduct de novo review of any finding or recommendation to
which a party objects. 28 U.S.C. § 636(b)(l)(C).
C.

Amendable Claims
Quigg's remaining objections concern allegations for which Judge Johnston

has granted Quigg leave to amend. (Doc. 23 at 6-8.) At this stage, the Court has

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reviewed Judge Johnston's Order for clear error. The Court finds no error, and
overrules Quigg's objections.
Review of the docket indicates that Quigg has yet to file a second amended
complaint or to advise the Court that he wishes to proceed on the denial of medical
care claim alone. Judge Johnston ordered Quigg to file his second amended
complaint or notice of intent to proceed by January 5, 2018. (Docs. 20 at 27; 22.)
The Clerk of Court received Quigg's Objections on Monday, January 8,
2018. (Doc. 23.) The Objections are dated January 4, 2018, a Thursday. Id. at 8.
Prisoner filings are deemed filed when delivered to prison authorities for
forwarding to the court clerk. See Houston v. Lack, 487 U.S. 266, 276 (1988). The
Court assumes the timeliness ofQuigg's Objections.
The Court notes Quigg's prose status. The Court must "liberally construe"

prose filings. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The Court will construe
Quigg's objections to toll the time Judge Johnston provided for Quigg to file his
second amended complaint. Quigg may file a second amended complaint by July
20, 2018.
Should Judge Johnston's recommend dismissal of these claims upon
screening ofQuigg's second amended complaint, Quigg may raise his objections
to those recommendations to receive de novo review. 28 U.S.C. § 636(b)(l)(C).

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III.

ORDER

Accordingly, IT IS ORDERED that Quigg's Objections to Magistrate
Judge Johnston's Orders (Doc. 23) are OVERRULED.
Quigg must file a second amended complaint or provide notice of his intent
to proceed on his denial of medical care claim against Nurse Vicki, Nurse Angie,
and PA Caruso on or before July 20, 2018.
Quigg must immediately notify the Court of any change in his mailing
address by filing a "Notice of Change of Address." Failure to do so may result in
dismissal of the case without notice.
DATED this 22"d day of June, 2018.

Brian Morris
United States District Court Judge

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